FEDERAL COURT OF AUSTRALIA

Rossi v Qantas Airways Limited (No 2) [2020] FCA 1080

ORDERS

THE COURT ORDERS THAT:

1.    Leave to make an application pursuant to s 46PO(1) of the Australian Human Rights Commission Act 1984 (Cth) alleging unlawful discrimination by the second respondent or the third respondent, being respondents to the complaint made by the applicant to the Australian Human Rights Commission and terminated by a delegate of the President of the Commission on 23 July 2019, be refused.

2.    The applicant pay the second and third respondents’ costs of the application.

3.    The application for leave to make an application alleging unlawful discrimination by the first respondent be adjourned pending the determination of the application for orders 1(a), (b) and (c) in the originating application.

4.    The application for orders 1(a), (b) and (c) in the originating application be listed for a case management hearing on Thursday 20 August 2020 at 9:30 am.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

GLEESON J:

1    The applicant (Ms Rossi) seeks leave to proceed under s 46PO(1) and s 46PO(3A)(a) of the Australian Human Right Commission Act 1986 (Cth) (AHRCA) in respect of her claims against:

(1)    the first respondent (Qantas), for discrimination in contravention of the Sex Discrimination Act 1984 (Cth) (SDA);

(2)    the second respondent (Maurice Blackburn), for aiding and permitting discrimination by Maurice Blackburn Gippsland Pty Ltd (MB Gippsland) and the third respondent (Mr McCristal), under the Disability Discrimination Act 1992 (Cth) (DDA); and

(3)    Mr McCristal for discrimination in contravention of the DDA.

2    The application was filed in September 2019. The claims against Qantas are based on events which allegedly occurred between 1990 and 2003, that is, between 17 and 30 years ago. The claims against Mr McCristal are based on events principally alleged to have occurred in 2008, now 12 years ago. The claims against Maurice Blackburn are based on events between about 2009 and 2011.

3    The application followed a complaint about Qantas, MB Gippsland and Mr McCristal, lodged by Ms Rossi with the Australian Human Rights Commission (AHRC) under Division 1 of Part IIB of the AHRCA on 21 December 2018 (AHRC complaint). Ms Rossi was assisted by her current lawyers, Harmers Workplace Lawyers, in making her complaint to the AHRC. On 20 March 2019, Harmers made written submissions to the AHRC on Ms Rossi’s behalf, apparently in relation to a proposal that the AHRC would terminate Ms Rossi’s complaint. On 27 May 2019, Ms Rossi amended her complaint to include an allegation of victimisation by Qantas. On 11 July 2019, Ms Rossi amended her complaint to refer to Maurice Blackburn.

4    On 23 July 2019, the AHRC complaint was terminated under s 46PF(1)(b) and s 46PH(1)(b), on the stated ground that the complaint was lodged more than 12 months after the alleged acts, omissions or practices took place.

5    The AHRC complaint was preceded by a workers compensation claim made by Ms Rossi against Qantas in about 2006. The claim was purportedly settled in October 2008, when Ms Rossi executed a “Deed of Settlement” (deed) by which she agreed to accept $75,000 in full and final settlement of any and all claims relating to her employment with Qantas. Since signing the deed, Ms Rossi has refused to accept the settlement monies and has attempted unsuccessfully to return those monies to Qantas.

6    In outline, Ms Rossi alleges that she suffered sex discrimination and sexual harassment at Qantas which caused her psychological injuries and led Ms Rossi to accept a voluntary redundancy in 2003. As a result of the injuries allegedly suffered by Ms Rossi at Qantas, Ms Rossi claims that she has been unable to work since 2003 (except for a brief period of about six weeks in 2005).

7    Ms Rossi accepts that her claim against Qantas can only go ahead if:

(1)    she is successful in her claim under the DDA as against Maurice Blackburn and Mr McCristal; and/or

(2)    the Court accepts that the deed is a nullity because Ms Rossi lacked capacity at the time she signed it.

8    The claims against Maurice Blackburn and Mr McCristal arise out of their involvement in the purported October 2008 settlement of Ms Rossi’s workers compensation claim and the aftermath of that event.

9    Among other things, Ms Rossi contends that the circumstances in which she signed the deed involved indirect discrimination and bullying. Ms Rossi’s claims against Maurice Blackburn and Mr McCristal extend to their alleged respective conduct in response to Ms Rossi’s efforts to return the settlement monies to Qantas up to December 2011.

Summary of conclusions

10    I am not satisfied that Ms Rossi has a reasonably arguable case against either Maurice Blackburn or Mr McCristal. Accordingly, leave to proceed should be refused in relation to Ms Rossi’s claims against those parties.

11    If I am wrong in concluding that Ms Rossi does not have a reasonably arguable case against Maurice Blackburn and Mr McCristal, I would not grant leave to proceed against either party because it would be palpably unjust to require a respondent to address the main issues that would be in dispute in this case, so long after that event. In particular, it would be difficult or impossible for Maurice Blackburn and Mr McCristal to address complex factual questions which arise about Ms Rossi’s medical conditions in 2008 and the events and circumstances that affected her medical conditions from time to time, but at least since 2003. Further, in my view, the cases that Ms Rossi wishes to bring are likely to consume very considerable time and resources, particularly in addressing as yet unarticulated questions concerning the precise nature of the services that are said to have been provided on a discriminatory basis, and the differential impact of those services on persons in Ms Rossi’s cohort and persons not affected by those alleged disabilities. Ms Rossi has not demonstrated that the alleged indirect discrimination is ongoing, or has affected or might affect any person other than herself. In those circumstances, any merit which her cases against Maurice Blackburn and Mr McCristal might have is not demonstrated to be proportionate to the time and resources likely to be consumed by dealing with it in this Court.

12    The application concerning Qantas should be adjourned pending the determination of Ms Rossi’s application to set aside the deed between Ms Rossi and Qantas, executed in October 2008. If that application fails, then the application for leave to proceed will be futile.

Legal framework

Requirement for leave

13    Section 3 of the SDA provides:

The objects of this Act are:

(a)    to give effect to certain provisions of the Convention on the Elimination of All Forms of Discrimination Against Women and to provisions of other relevant international instruments; and

(b)    to eliminate, so far as is possible, discrimination against persons on the ground of sex, sexual orientation, gender identity, intersex status, marital or relationship status, pregnancy or potential pregnancy or breastfeeding in the areas of work, accommodation, education, the provision of goods, facilities and services, the disposal of land, the activities of clubs and the administration of Commonwealth laws and programs; and

(ba)    to eliminate, so far as possible, discrimination on the ground of family responsibilities in the area of work; and

(c)    to eliminate, so far as is possible, discrimination involving sexual harassment in the workplace, in educational institutions and in other areas of public activity; and

(d)    to promote recognition and acceptance within the community of the principle of the equality of men and women.

14    Section 3 of the DDA provides:

The objects of this Act are:

(a)    to eliminate, as far as possible, discrimination against persons on the ground of disability in the areas of:

(i)     work, accommodation, education, access to premises, clubs and sport; and

(ii)    the provision of goods, facilities, services and land; and

(iii)    existing laws; and

(iv)    the administration of Commonwealth laws and programs; and

(b)    to ensure, as far as practicable, that persons with disabilities have the same rights to equality before the law as the rest of the community; and

(c)    to promote recognition and acceptance within the community of the principle that persons with disabilities have the same fundamental rights as the rest of the community.

15    In Waters v Public Transport Corporation [1991] HCA 49; (1991) 173 CLR 349 (Waters) at 359, Mason CJ and Gaudron J stated:

… [T]he principle that requires that the particular provisions of the Act must be read in the light of the statutory objects is of particular significance in the case of legislation which protects or enforces human rights. In construing such legislation the courts have a special responsibility to take account of and give effect to the statutory purpose …

16    Section 46PO of the AHRCA provides relevantly:

(1)    If:

(a)    a complaint has been terminated by the President under section 46PE, paragraph 46PF(1)(b) or section 46PH; and

(b)    the President has given a notice to any person under subsection 46PH(2) in relation to the termination;

any person who was an affected person in relation to the complaint may make an application to the Federal Court or the Federal Circuit Court, alleging unlawful discrimination by one or more of the respondents to the terminated complaint.

(2)    The application must be made within 60 days after the date of issue of the notice under subsection 46PH(2), or within such further time as the court concerned allows.

.…

(3A)    The application must not be made unless:

(a)     the court concerned grants leave to make the application; or

(b)    the complaint was terminated under paragraph 46PH(1)(h); or

(c)    the complaint was terminated under paragraph 46PH(1B)(b).

…

17    The leave requirement in s 46PO(3A)(a) was introduced in 2017: see Human Rights Legislation Amendment Act 2017 (Cth) Sch 2 cl 53.

18    Sections 46PO(3A)(b) and (c) do not apply in this case. Section 46PH(1)(h) provides for termination of a complaint because the President of the Commission is “satisfied that the subject matter of the complaint involves an issue of public importance that should be considered by the Federal Court or the Federal Circuit Court”. Section 46PH(1B)(b) provides for mandatory termination of a complaint if the President of the Commission is satisfied “there is no reasonable prospect of the matter being settled by conciliation”.

19    In James v WorkPower Inc [2018] FCA 2083 (James) at [31] and [32], Mortimer J observed relevantly:

[31]    Like other judicial discretions empowering leave to be granted to a party to take a step in a proceeding … or to issue a proceeding …, the interests of the administration of justice will be a governing consideration in the way the discretion falls to be exercised. However, how the assessment of what is in the interests of the administration of justice is to be undertaken will vary depending on the nature of the power in issue, and the circumstances which give rise to a request for its exercise. Here, as the respondent submits, the imposition of a leave requirement in certain circumstances by the amendments to s 46PO in 2017 had a clear purpose. Any consideration of where the interests of the administration of justice lie must recognise and give weight to that purpose.

[32]    The purpose of the leave discretion, taking into account its text and context, is to provide a filter. It removes what was previously an entitlement to bring a proceeding in this Court once the Commission has terminated a complaint. It sits alongside the limits which have always been imposed by s 46PO(3), themselves aimed at constraining the subject matter of proceedings under s 46PO to the substance of what was before the Commission.

20    At [37]-[39], her Honour concluded:

[37]    I am satisfied that the text, context and purpose of the leave requirement in s 46PO(3A) suggests that it is appropriate for the Court to consider in determining whether to grant leave whether the claims made by an applicant are reasonably arguable, and are – at the least – not fanciful. This is consistent with the language used in s 46P(1A). I do not consider, read in context, that s 46PO(3A) sets the bar particularly high: the purpose of the provision is to act as a filter to preclude complaints whose merits are disproportionate to the time and resources likely to be consumed by dealing with them in a whole proceeding, but not to impose a barrier of any substantively greater level.

[38]    There may be a range of other permissible considerations including:

(1)    the circumstances of the parties: how important the subject matter of the complaint is to both the applicant and any respondent, and to their respective circumstances;

(2)    the nature of the allegations made (including whether for example they involve allegations of continuing discrimination, or how serious the discrimination is alleged to be);

(3)     how thoroughly the Commission has dealt with the merits of the complaint. For example, it may be the Commission’s termination reasons thoroughly answer the alleged merits of a complaint and make it clear the complaint is not reasonably arguable;

(4)    whether an applicant has delayed in complaining about the alleged discrimination and if so whether there are any explanations for that delay;

(5)    whether a respondent has attempted to address the allegations in any way outside the Commission process and whether the allegations have been addressed or resolved in any way;

(6)    the factual and legal complexity of the matters raised by the allegation of unlawful discrimination;

(7)    whether the allegations raise issues of public importance, or of general application. The express power given to the President in s 46PH(1)(h) does not exhaust the circumstances in which this factor might be considered; and

(8)    other factors that are often considered in leave applications – such as prejudice to a party.

[39]    As I have noted in other contexts, it is important with judicial discretions concerning leave not to conflate the task of granting leave with the task of considering what is the correct conclusion on the facts and the law at final hearing: see my comments to similar effect in Kaur v Minister for Immigration and Border Protection [2015] FCA 584; 233 FCR 507 at [28]-[31] and in DJS16 v Minister for Immigration and Border Protection [2018] FCA 2037 at [27]. It would be a denial of procedural fairness to an applicant at the very least and, in my opinion, a misunderstanding of the role to be played by the leave requirement in s 46PO(3A), if the Court were to embark on a detailed consideration and determination of the merits of the applicant’s underlying arguments about unlawful discrimination. Questions of fact, and questions of law, which are arguable are to be determined at trial, subject to any Court-directed processes such as the stating of a separate question under r 30.01 of the Federal Court Rules.

21    In Budini v Sunnyfield [2019] FCA 2164 (Budini), Charlesworth J stated (at [58]-[59]):

[58]    Although not expressed as an absolute time limit by which complaints must be brought, the discretion conferred by s 46PH(1)(b) reflects a policy to ensure that allegations of unlawful discrimination are made promptly. That policy has been reinforced by more recent amendments reducing the period specified in s 46PH(1)(b) further still from 12 months to six months: Human Rights Legislation Amendment Act 2017 (Cth), s 39. The statute evinces an intention that controversies concerning unlawful discrimination are to be promptly quelled by a process of conciliation by the Commission as a specialist body in which the respondent may fairly participate and so achieve a non-litigious resolution if that can be done. The mischiefs to be avoided include the uncertainty arising from a prolonged untested allegation, and the spectre of a complaint taking a respondent by surprise, including by the complainant attaching a late allegation of unlawful discrimination to a pre-existing controversy. On a subsequent application for leave, it may be relevant to consider the extent to which the conduct of the complainant undermines these statutory objectives.

[59]    In an appropriate case, the fact of the delay may justify the termination of the complaint by the Commission without conciliation, particularly where there is no reasonable explanation for it. Where such a complaint has been terminated under s 46PH(1)(b), it may be appropriate to refuse leave to commence a proceeding, even if the case sought to be commenced is reasonably arguable in the sense discussed by Mortimer J in WorkPower.

Delay and prejudice

22    There is no time limit for making a complaint to the AHRC. Even so, as appears from James and Budini above, delay may be a relevant consideration in deciding whether to grant leave under s 46PO(3A)(a).

23    In Brisbane South Regional Health Authority v Taylor [1996] HCA 25; (1996) 186 CLR 541 (Brisbane South) at 551-552, addressing the proper exercise of a discretion to extend time in the context of delay, McHugh J said:

For nearly 400 years, the policy of the law has been to fix definite time limits (usually six but often three years) for prosecuting civil claims. The enactment of time limitations has been driven by the general perception that “[w]here there is delay the whole quality of justice deteriorates.” Sometimes the deterioration in quality is palpable, as in the case where a crucial witness is dead or an important document has been destroyed. But sometimes, perhaps more often than we realise, the deterioration in quality is not recognisable even by the parties. Prejudice may exist without the parties or anybody else realising that it exists. As the United States Supreme Court pointed out in Barker v Wingo, “what has been forgotten can rarely be shown”. So, it must often happen that important, perhaps decisive, evidence has disappeared without anybody now “knowing” that it ever existed. Similarly, it must often happen that time will diminish the significance of a known fact or circumstance because its relationship to the cause of action is no longer as apparent as it was when the cause of action arose. A verdict may appear well based on the evidence given in the proceedings, but, if the tribunal of fact had all the evidence concerning the matter, an opposite result may have ensued. The longer the delay in commencing proceedings, the more likely it is that the case will be decided on less evidence than was available to the parties at the time that the cause of action arose.

Even before the passing of the Limitation Act 1623 (Imp), many civil actions were the subject of time limitations. Moreover, the right of the citizen to a speedy hearing of an action that had been commenced was acknowledged by Magna Carta itself. Thus for many centuries the law has recognised the need to commence actions promptly and to prosecute them promptly once commenced. As a result, courts exercising supervisory jurisdiction over other courts and tribunals in their jurisdictions have power to stay proceedings as abuses of process if they are satisfied that, by reason of delay or other matter, the commencement or continuation of the proceedings would involve injustice or unfairness to one of the parties.

The effect of delay on the quality of justice is no doubt one of the most important influences motivating a legislature to enact limitation periods for commencing actions. But it is not the only one. Courts and commentators have perceived four broad rationales for the enactment of limitation periods. First, as time goes by, relevant evidence is likely to be lost. Second, it is oppressive, even “cruel”, to a defendant to allow an action to be brought long after the circumstances which gave rise to it have passed. Third, people should be able to arrange their affairs and utilise their resources on the basis that claims can no longer be made against them. Insurers, public institutions and businesses, particularly limited liability companies, have a significant interest in knowing that they have no liabilities beyond a definite period. As the New South Wales Law Reform Commission has pointed out:

“The potential defendant is thus able to make the most productive use of his or her resources and the disruptive effect of unsettled claims on commercial intercourse is thereby avoided. To that extent the public interest is also served.”

Even where the cause of action relates to personal injuries, it will be often just as unfair to make the shareholders, ratepayers or taxpayers of today ultimately liable for a wrong of the distant past, as it is to refuse a plaintiff the right to reinstate a spent action arising from that wrong. The final rationale for limitation periods is that the public interest requires that disputes be settled as quickly as possible …

24    In Herron v McGregor (1985) 6 NSWLR 246 (Herron) at 254-255, in relation to disciplinary proceedings, McHugh JA (Street CJ and Priestley JA agreeing) had earlier said:

… The public interest requires that complaints be lodged and dealt with as expeditiously as possible… A person with reasonable ground for complaint, therefore, should pursue it with reasonable diligence. Memories fade. Relevant evidence becomes lost. Even when written records are kept, long delay will frequently create prejudice which can never be proved affirmatively... In some cases delay makes it simply impossible for justice to be done: Birkett v James (at 317-318, 327). In R v Lawrence [1982] AC 510 at 517, Lord Hailsham LC pointed out that: “Where there is delay the whole quality of justice deteriorates.” The difficulties in ascertaining the truth about a matter after time has done its work are vividly portrayed by Street CJ in the Report of the Royal Commission of Inquiry into Certain Committal Proceedings Against K E Humphreys (July 1983). His Honour said (at 9-10):

“In the intervening five or six years, rumours waxed and waned. In some cases suspicion underwent subtle change to belief, which itself progressed to reconstruction, which in turn escalated to recollection. No presently stated recollection could be safely assumed not to have progressed upwards and not to be the product of one of these earlier stages. The sheer frailty of human memory of necessity required a most anxious and critical appraisal of the evidence of the witnesses, no matter how credit-worthy they might be.

It became apparent that in the years since August 1977 the recollections even of those with undoubted first-hand knowledge have in some instances faded, in some instances fermented, and in some instances expanded. Moreover, in many cases the realisation of the significance — indeed, the enormity — of what had occurred has tended to transmute into a more or less cynical acceptance of what had, or was believed or rumoured to have, taken place.”

Because delay creates prejudice and injustice, the policy of the law for over 300 years has been to fix definite time limits for prosecuting civil claims (usually a maximum of six years) and for 150 years to fix definite time limits for prosecuting summary criminal offences. Equity, though not bound by the common law limitations, applied them by analogy. The reasons which have impelled the legislature to fix time limits in civil and many criminal cases are equally applicable to disciplinary proceedings. When a number of years has elapsed since the conduct occurred, the lodging of a complaint prima facie needs justification although, of course, there can be no fixed rule.

25    In Eliezer v University of Sydney [2015] FCA 1045; (2015) 239 FCR 381, Perry J considered the operation of s 46PO before the introduction of the leave requirement in s 46PO(3A). In that context, her Honour considered whether proceedings brought within the time limit established by s 46PO(2) were nevertheless an abuse of process by reason of delay. At [64], her Honour accepted that the prejudice caused by delay may be insidious and unable to be positively proved. At [66], her Honour expressed the view that the considerations identified by McHugh J in Brisbane South informed the concept of abuse of process when delay was relied upon.

26    In my view, those considerations equally inform the exercise of the power to grant leave to make an application under s 46PO(3A).

Ms Rossi’s case Against Qantas

27    Ms Rossi’s amended statement of claim (ASoC) identifies at least 17 individuals who allegedly engaged in conduct that discriminated against her on the grounds of sex and or conduct that constituted sexual harassment.

Sex discrimination

28    In the ASoC, the alleged discriminatory conduct is arranged in nine categories. When examined, the categories cover at least 28 separate incidents. Most, but not all, concern the conduct of specified individuals who worked at Qantas at the relevant times.

29    The first complaint is that, between 1990 and 2003, eight specified male colleagues of Ms Rossi made unfair and unreasonable complaints or criticised Ms Rossi about other women employed by Qantas or women in general to Ms Rossi, or about Ms Rossi herself. This complaint comprises 15 incidents as well as a complaint made in relation to the conduct of internal recruitment drives which occurred not less than yearly and, in particular by four named individuals.

30    The separate incidents occurred at the following times:

(1)    Not less than yearly, male colleagues told Ms Rossi that female applicants for promotions were “not up to the job” (or words to this effect).

(2)    About 2000, concerning a statement by Mr Dewhurst (who was then Ms Rossi’s line manager) that he did not think that women who were single parents juggling family responsibilities should fly.

(3)    About 2000, concerning a statement by a flight attendant to the effect that women were being promoted without regard to merit or competence.

(4)    Early 2001, concerning a statement by Mr Dewhurst to a female colleague to the effect that she should not “over-manage” the crew after a male flight attendant had thrown a sandwich at her.

(5)    About 2001, concerning Mr Larsen (who was Ms Rossi’s line manager after Mr Dewhurst) making fun of Ms Rossi in front of other colleagues.

(6)    On 27 July and 14 August 2001, concerning a formal complaint made by Mr Munro (a co-worker of Ms Rossi) against Ms Rossi.

(7)    About July to August 2001, comprising three separate occasions involving criticisms made by Mr Dewhurst of Ms Rossi in the presence of her colleagues.

(8)    About 30 July 2001, concerning a “Trip Performance Review” conducted by Mr Dewhurst.

(9)    About 29 August 2001, concerning a letter from Qantas advising her that there would be an investigation into allegations of harassment by Ms Rossi of Mr Munro.

(10)    About 31 August 2001, concerning a conversation between Ms Rossi and Mr Dewhurst.

(11)    About September 2001, concerning a letter from Ms Rossi seeking particulars in relation to the complaint made against her.

(12)    About April 2002, when Mr Dewhurst criticised Ms Rossi’s Personal Contribution Plan.

(13)    About 12 April 2003, when a flight attendant criticised Ms Rossi after she directed him not to make sexually suggestive comments to a colleague.

(14)    About 26 January 2003, concerning conversations between Ms Rossi and Mr Larsen in which he said that there were around 15 separate complaints about her management style to the effect that her standards were too high, she was pedantic and she was a perfectionist.

(15)    About 6 February 2003, concerning a conversation in which it was claimed that Ms Rossi had unfairly criticised another flight attendant about the use of blue nail polish.

31    The second complaint is that, between 1990 and 2003, colleagues of Ms Rossi engaged in treatment of her which included often ignoring her, not calling her by her name and using diminutives and acting in an aggressive and intimidating manner towards her. Five colleagues are named in relation to incidents on dates around 14 and 16 May 2001, about May 2002, 20 and 21 December 2002 and 13 April 2003 (two incidents involving different colleagues). In addition, there is an allegation that, between 2001 and 2003, on flights to and from Los Angeles, more senior male pilots would more often than not ignore Ms Rossi during the initial introduction, look past her and introduce themselves to the first male, who may have been at a lower level of seniority than Ms Rossi.

32    The third matter arises out of complaints made by Ms Rossi in about 2001 to Mr Dewhurst, Ms Rossi’s line manager, that Mr Munro had not kept confidential facts and matters that were the subject of Mr Munro’s complaint. It is alleged that Mr Dewhurst failed to take steps or reasonable steps “including but not limited to” investigating Ms Rossi’s complaint concerning Mr Munro; requiring Mr Munro to maintain confidentiality about his complaint; requiring Mr Munro not to spread unfair and unreasonable rumours about Ms Rossi’s management of staff; and ensuring Mr Dewhurst’s own discussions with Ms Rossi about Mr Munro’s complaint were confidential.

33    The fourth matter concerns a training session in about December 2000. The complaint is that Ms Rossi was embarrassed in front of other staff when she disclosed her discomfort with the supply of a magazine titled “Black & White” as on-board reading material because it contained female nudes, allegedly often in provocative sexualised positions. Ms Rossi was embarrassed because, in response, she was told by Lee Orbuck, a Customer Service Manager, words to the effect of: “do not rock the boat”; “get off your feminist soapbox” and “don’t be a prude”.

34    The fifth matter concerns a dispute in about November 2001 about treatment in accordance with the Divisional Structure Agreement (Clause 61 of the Enterprise Bargaining Agreement IV). Ms Rossi alleges that Mr Dewhurst threatened Ms Rossi’s position if she continued to engage in the dispute and told her colleagues that she was “militant” in her dealings with Qantas.

35    The sixth matter concerns the alleged conditions or requirements or practices imposed on Ms Rossi, in about 1995 and 2003, that Ms Rossi:

(1)    be personally vigilant for drink spiking in order that she avoid sexual assault while on overseas layovers; and

(2)    not complain about sexually harassing behaviour she saw on-board flights.

36    The seventh matter concerns the behaviour of a flight attendant on about 12 April 2002, during a flight from Melbourne to Adelaide. The flight attendant allegedly repeatedly referred to a lesbian couple travelling on the flight as “carpet munchers”, including after being asked to stop by Ms Rossi.

37    The eighth matter concerns Ms Rossi’s unsuccessful application for promotion in about mid-2002.

38    The ninth matter concerns the way in which Qantas responded to complaints made by Ms Rossi orally on 6 February 2003 (in the presence of a union representative, Mr Brady) and in writing in about April 2003 in a Safety Observation Report, particularly directed to a Captain Hudson.

Sexual harassment

39    There are four complaints of sexual harassment comprising two instances of continuing conduct and two particular instances. In summary, the alleged facts are:

(1)    The distribution of the “Black & White” magazine to first and business class passengers in about 2000 and thereafter, despite an oral complaint made by Ms Rossi to Ms Gray.

(2)    From about December 2000, unidentified male crew members would look at Ms Rossi’s breasts rather than her face when speaking with Ms Rossi while she was not wearing her uniform jacket.

(3)    In about January 2003, Ms Rossi’s line manager, Mr Larsen told Ms Rossi that she should not “worry about complaints made about her by crew member because he loved” Ms Rossi.

(4)    On about 13 April 2003, during a return leg from Adelaide to Sydney, there was a problem with the personal announcement safety system and the Captain came out of the flight desk, took the phone handset, placed it to his groin area as if it was an erect penis, wiggled it around and looked at Ms Rossi, and said “Have we tried this?”

Consideration

40    There is a significant amount of evidence going to the various considerations identified by Mortimer J in WorkPower. However, I have concluded that I should not make detailed findings in relation to those considerations, where there is an unresolved issue concerning whether Ms Rossi’s claims against Qantas are reasonably arguable, being Ms Rossi’s challenge to the operation of the deed.

41    The precise relief sought by Ms Rossi in her originating application includes declarations or orders that would have the effect of setting aside the deed on the grounds of duress and/or unconscionable conduct by Maurice Blackburn and/or Mr McCristal; a declaration that at the time of signing the deed, Ms Rossi was a handicapped person within the meaning of r 15.03(3) of the County Court Civil Procedure Rules 2018 (Vic) (County Court Rules), and a declaration that the deed is void by operation of s 70 of the Civil Procedure Act 2010 (Vic) and order 15 of the County Court Rules (deed claims).

42    These issues should be resolved promptly and before the question of leave to proceed is finally determined.

43    Senior counsel for Qantas, Ms Raper SC, made a submission to the effect that the Court would not have jurisdiction to deal with Ms Rossi’s claims to set aside the deed if leave to proceed under the AHRCA was refused. It is not necessary to address that submission, which was directed to a different eventuality. It is sufficient to note that the Court’s jurisdiction “is engaged by an action in respect of subject matter with which the court can deal”: Humane Society International Inc v Kyodo Senpaku Kaisha Ltd [2006] FCAFC 116; (2006) 154 FCR 425 at [10]. The question of the Court’s jurisdiction to deal with the claims to set aside the deed will need to be resolved if it is contested.

44    Although Ms Rossi did not ask me to decide her deed claims, there was some argument on the topic. I have reached some preliminary views which it is appropriate to record.

45    By the ASoC, Ms Rossi pleads relevantly:

122    The Disabilities caused the Applicant to be under a legal incapacity in that she was:

a.    Unable to represent herself at any stage since in or about July 2003 to the present date and so required the services of a lawyer; and

b.    Unable to provide instructions to a lawyer to settle the Proceedings on 29 October 2008.

…

123    The Applicant’s instructions to settle the Proceedings including but not limited to the execution of the Deed on 29 October 2008 (Deed) was null and void due the operation of s 78 of the Country Court Act 1958 (Vic) and Order 15 of the then County Court Rules of Procedure in Civil Proceedings 1999 (Vic).

…

130    The Deed is void:

a.    As the Applicant was under duress, or undue influence at the time of signing the Deed; and/or

b.    Due to the unconscionable conduct of MB Gippsland and the Third Respondent.

46    Section 78 of the Country Court Act 1958 (Vic) is a rule making power. Order 15 of the County Court Civil Rules of Procedure in Civil Proceedings 1999 (Vic) contained rules concerning persons under a disability, including a requirement that a person under a disability must generally commence proceedings only by a person’s litigation guardian, and a requirement of court approval for any compromise of a proceeding by or on behalf of a person with a disability. Order 15.1 defined a “person under disability” to mean a minor or handicapped person. A “handicapped person” was defined to mean “a person who is incapable by reason of injury, disease, senility, illness or physical or mental infirmity of managing that person’s affairs in relation to the proceeding”.

47    I am doubtful that Ms Rossi may be entitled to have the deed set aside on the basis of the alleged conduct of Mr McCristal. There is no suggestion that Mr McCristal was acting on behalf of Qantas at any relevant time, or that Qantas was on notice of the alleged conduct of Mr McCristal: cf. Louth v Diprose [1992] HCA 61; (1992) 175 CLR 621 at 637; Dunwoodie v Teachers Mutual Bank Ltd [2014] NSWCA 24 at [51]; Bainbrigge v Browne [1881] 18 Ch D 188 at 197; Thorne v Kennedy [2017] HCA 49; (2017) 263 CLR 85 at [25].

48    On its face, order 15 does not appear to provide a basis to set aside a deed on the ground of mental incapacity. That is, even assuming that Ms Rossi was required to bring her workers compensation proceeding by a litigation guardian, or that the compromise of that proceeding should not have occurred without the approval of the Court, those matters do not appear to support a conclusion that the deed should be set aside without more.

49    A deed may be set aside on the ground of mental incapacity at the time of execution. There is authority that the mental capacity required in respect of any instrument is relative to the particular transaction which is being effected by means of the instrument: Croft v Sanders [2019] NSWCA 303 at [126], citing Gibbons v Wright (1954) 91 CLR 423 at 438; [1954] HCA 17 (Gibbons). In the latter case, the High Court gave the following explanation:

Ordinarily the nature of the transaction means in this connection the broad operation, the “general purport” of the instrument; but in some cases it may mean the effect of a wider transaction which the instrument is a means of carrying out: Manches v. Trimborn (1946) 174 LT 344, at p 345. In the present case, it was necessary, we think, that the two sisters should have been capable of understanding, if the matter had been explained to them, that by executing the mortgages and the memorandum of transfer they would be altering the character of their interests in the properties concerned, so that instead of the last survivor of the three joint tenants becoming entitled to the whole, each of them would be entitled to a one-third share which would pass to her estate if she still owned it at her death.

50    Applying Gibbons, in Crago v McIntyre [1976] 1 NSWLR 729 at 739, Holland J concluded that the standard of sanity required in the case of a contract or a disposition of property for valuable consideration inter vivos is a capacity to understand the general nature of the transaction, not merely the direct effect of the document itself, but the general nature of the transaction that is designed to be achieved by the document.

51    If these cases state the relevant law, then there is a question as to whether the current evidence is capable of supporting a finding that Ms Rossi relevantly lacked capacity when she signed the deed.

Ms Rossi’s case against Maurice Blackburn and Mr McCristal

Relevant provisions of DDA

52    Section 3 of the DDA sets out its objects including relevantly, to eliminate, as far as possible, discrimination against persons on the ground of disability in the areas of the provision of goods, facilities, services and land.

53    Ms Rossi’s case against Maurice Blackburn and Mr McCristal is concerned with indirect disability discrimination. Ms Rossi alleges that Mr McCristal engaged in unlawful discrimination against her and that Maurice Blackburn aided or permitted some, but not all, of Mr McCristal’s unlawful conduct.

54    At the relevant time, s 6 provided relevantly:

(1)    For the purposes of this Act, a person (the discriminator) discriminates against another person (the aggrieved person) on the ground of a disability of the aggrieved person if the discriminator requires the aggrieved person to comply with a requirement or condition:

(a)    with which a substantially higher proportion of persons without the disability comply or are able to comply; and

(b)    which is not reasonable having regard to the circumstances of the case; and

(c)    with which the aggrieved person does not or is not able to comply.

55    Section 24 provided, relevantly:

(1)    It is unlawful for a person who, whether for payment or not, provides goods or services … to discriminate against another person on the ground of the other person’s disability …

…

(b)    in the terms or conditions on which the first-mentioned person provides the other person with those goods or services or makes those facilities available to the other person; or

(c)    in the manner in which the first-mentioned person provides the other person with those goods or services or makes those facilities available to the other person.

56    It is not necessary that the relevant terms or conditions be made explicit: a requirement may be implicit in the conduct that is said to constitute discrimination: Waters at 360.

57    Section 122 provided:

A person who causes, instructs, induces, aids or permits another person to do an act that is unlawful under Division 1, 2, 2A or 3 of Part 2 is, for the purposes of this Act, taken also to have done the act.

58    In Cooper v Human Rights and Equal Opportunity Commission & Anor [1999] FCA 180; (1999) 93 FCR 481 at [41], Madgwick J explained the concept of permission in s 122 as follows:

… [F]or the purposes of the Disability Discrimination Act, one person permits another to do an unlawful discriminatory act if he or she permits that other to do an act which is in fact discriminatory. … In Adelaide City Corporation v Australasian Performing Rights Association Ltd (1928) 40 CLR 481 at 490-91, Isaacs J said:

“the word ‘permits’ is of very extensive connotation... the primary [dictionary] meaning of ‘permit’ is: ‘to allow, suffer, give leave; not to prevent ...’ As an illustration, a person ‘permits’ his hall to be used for the public performance of a play ... if he knows or has reason to know or believe that the particular play ... will or may be performed and, having the legal power to prevent it, nevertheless disregards that power and allows his property to be used for the purpose. For example... McCardie J held that [a claim that copyright in a musical work had been infringed by the hall proprietors] was rightly abandoned. But that was because the hall proprietors ‘had no reasonable ground for suspecting that there would be an infringement of copyright by the band’.” (Emphasis added.)

Alleged facts

59    Ms Rossi alleges that:

(1)    In about mid-2006, she commenced proceedings under the Accident Compensation Act 1985 (Vic) for recovery of damages due to injury at work during her employment with Qantas.

(2)    In about July 2007, she engaged MB Gippsland to advise and represent her in relation to her workers compensation claim. Mr McCristal was the solicitor with the carriage of the claim. The principal relevant services are the services provided to Ms Rossi by MB Gippsland and Mr McCristal in connection with the workers compensation claim.

(3)    Ms Rossi alleges that MB Gippsland and Mr McCristal “imposed conditions or requirements on [her] at the time of settling” the workers compensation claim in conversations on 27, 28 and 29 October 2008. These were requirements that Ms Rossi possess the following three characteristics:

(a)    legal capacity;

(b)    normal emotional resilience;

(c)    normal cognitive capacity (three requirements).

(4)    On 29 October 2008 Ms Rossi signed the deed in circumstances described in her AHRC complaint and particularised at para 125 of the ASoC, by which the workers compensation claim was purportedly resolved.

(5)    Ms Rossi alleges that she entered into the deed as a result of Mr McCristal’s undue pressure upon her, and in circumstances in which she lacked legal capacity.

(6)    On 1 December 2008, Ms Rossi spoke with Mr McCristal and raised concerns about her fitness to sign the deed and her view that the deed was “not right”. Since then, she has taken steps to obtain assistance to have the deed set aside but has so far been unsuccessful. As part of these efforts, Ms Rossi has sought unsuccessfully to return the settlement monies to Qantas.

(7)    From about 22 October 2009, Maurice Blackburn aided and permitted Mr McCristal to “continue” his breach of the DDA when that firm:

(a)    continued to represent Ms Rossi in relation to the workers compensation claim;

(b)    required Ms Rossi to accept the “Settlement” (which I infer is the 29 October 2008 settlement of the workers compensation proceeding); and

(c)    failed to address her concerns in respect of the purported settlement (ASoC para 121A).

(8)    From about 24 May 2011, Maurice Blackburn provided legal services to Ms Rossi (ASoC para 5(c)).

(9)    From about 30 June 2011, Maurice Blackburn provided services to Ms Rossi comprising legal advice and representation to her in respect of the workers compensation claim including but not limited to the resolution of the claim. From this time, Maurice Blackburn managed the legal work associated with the claim including but not limited to engaging in correspondence in relation to the claim. Further, the services included appointing a suitably qualified practitioner to undertake the legal work associated with the services and Maurice Blackburn appointed Mr McCristal to this role from about 30 June 2011 (ASoC para 111A).

Mr McCristal

60    It is convenient to deal with the case against Mr McCristal first, as it involves events that preceded any dealings between Ms Rossi and Maurice Blackburn.

61    In Abela v State of Victoria [2013] FCA 832 (Abela) at [85], Tracey J explained that the requirements or conditions with which s 6 of the DDA is concerned are “requirements or conditions which have general application but which bear oppressively on a particular cohort or group which the legislation is designed to protect”. For example, a requirement that students at a school should use a toilet in a particular location, or a requirement that all students attending a school comply with the school discipline policy.

62    This explanation is supported by the explanation given by Dawson and Toohey JJ in Waters at 392 concerning the distinction between direct and indirect discrimination, as follows:

Broadly speaking, direct discrimination occurs where one person is treated in a different manner (in a less favourable sense) from the manner in which another is or would be treated in comparable circumstances on the ground of some unacceptable consideration (such as sex or race). On the other hand, indirect discrimination occurs where one person appears to be treated just as another is or would be treated but the impact of such “equal” treatment is that the former is in fact treated less favourably than the latter. The concept of indirect discrimination was first developed in the United States in relation to practices which had a disproportionate impact upon black workers as opposed to white workers: Griggs v. Duke Power Co. [1971] USSC 46; (1971) 401 US 424. Both direct and indirect discrimination therefore entail one person being treated less favourably than another person. The major difference is that in the case of direct discrimination the treatment is on its face less favourable, whereas in the case of indirect discrimination the treatment is on its face neutral but the impact of the treatment on one person when compared with another is less favourable.

63    At 407, McHugh J stated:

In the context of providing goods or services, a person should be regarded as imposing a requirement or condition when that person intimates, expressly or inferentially, that some stipulation or set of circumstances must be obeyed or endured if those goods or services are to be acquired, used or enjoyed.

64    As to the requirement or condition imposed in that case, his Honour reasoned (at 407-408):

… [A] person could use the services provided by the Corporation’s trams only if that person was prepared, inter alia, to endure using the trams without the assistance of conductors. That being so, it is no misuse of ordinary language to hold that the Corporation imposed a requirement or condition on persons using its trams if the services provided are characterised as the provision of trams. No doubt, as counsel for the Corporation stressed, it is important to distinguish between the services provided and the requirement or condition imposed. If, e.g., the Board found that the relevant services provided were conductorless trams, then it is difficult to see how the use of trams without a conductor was a requirement or condition of providing the service. Whether the services provided were trams or trams without conductors was a question of fact for the Board. Unfortunately, the Board defined the services provided at too high a level of generality to determine whether it was open as a matter of law to find that the use of trams without a conductor was a requirement or condition of the services provided. Nevertheless, in my opinion, Phillips J. erred in holding that as a matter of law the provision of trams without conductors was not imposing a requirement or condition on persons using those trams. Whether or not it was a requirement or condition is a question of fact for the Board after it defines the relevant services with greater precision.

65    Mr McCristal argued that the ASoC does not identify the relevant services in a manner which adequately pleads a claim of indirect discrimination. I agree. The alleged services are referrable solely to Ms Rossi, being services provided:

i.    From in or about July 2007 as Director of MB Gippsland and solicitor with carriage of the Injury Proceedings including but not limited to the resolution of those proceedings; and

ii.    As the solicitor appointed by [Maurice Blackburn to] do or oversee all the legal work associated with paragraphs 111 and 111Aii 1 & 2

66    Paragraph 110 defines the Injury Proceedings as the proceedings commenced by Ms Rossi in about mid-2006 under the Accident Compensation Act 1985 (Vic) for recovery of damages due to injury at work during the period of her employment with Qantas.

67    Paragraph 111 alleges:

In or about July 2007, the Applicant engaged MB Gippsland to advise and represent her in relation to the Injury Proceedings.

68    Paragraphs 111Aii 1 & 2 are:

1.    Providing legal advice and representation to the Applicant in respect of the Injury Proceedings including but not limited to the resolution of those proceedings.

2.    Managing the legal work associated with the Injury Proceedings including but not limited to engaging in correspondence in relation to the Injury Proceedings.

69    As the pleaded services are specific to Ms Rossi, there is no room to argue about whether Ms Rossi was treated the same or less favourably than another person who was provided with those services.

70    The allegation that Mr McCristal imposed conditions or requirements upon Ms Rossi is also solely referrable to her position. It is particularised by reference to conversations between Ms Rossi and Mr McCristal on 27, 28 and 29 October 2008. There is no allegation that the alleged conditions or requirements are, were or would have been imposed upon other clients of Mr McCristal in relation to the alleged services or any other services.

71    In Abela, the Court held that no relevant requirement or condition was imposed where the complaint was that the respondent failed to act in particular ways in response to the applicant’s particular disability-related needs.

72    Ms Rossi’s ASoC goes no further than to allege that Mr McCristal failed to act in particular ways in response to Ms Rossi’s particular disability-related needs in connection with the provision of services that relate solely to Ms Rossi.

73    In Abela at [96], Tracey J noted that “a stipulation (express or implied) to which a recipient of services may be subject can constitute a requirement or condition because the practical effects of the operation of the stipulation must be experienced by a person who wishes to use the relevant services”. A relevant example is the case in Waters where it was held that a provider of tram services had imposed a requirement or condition that passengers travel without the assistance of conductors. Similarly, in Innes v Rail Corporation (NSW) No. 2 [2013] FMCA 36 the Federal Magistrates Court found that Mr Innes, who was blind, was subjected by RailCorp to a requirement or condition of obtaining rail services that, in order to know his whereabouts on the journey, he was able to read the signage.

74    In each of these cases, the alleged stipulation plainly operated in relation to consumers other than the applicant.

75    In Ms Rossi’s case, she has not pleaded that the alleged requirements were, in fact, imposed on other clients or would have been imposed on other clients who sought the relevant service.

76    Paragraph 118 of the ASoC, which effectively mirrors the language of s 6(1)(a) of the DDA, alleges:

A substantially higher proportion of persons without the Disabilities could comply or would be able to comply with the Requirements because the Disabilities are likely to affect:

a.    Legal capacity;

b.    Emotional resilience; and

c.    Cognitive capacities including those listed in subparagraphs 118c above.

77    This allegation merely assumes that differential imposition of the alleged requirements. Without an allegation that the requirements were imposed on any other recipient of relevant services, or would have been, if the relevant services were acquired, there can be no finding of discrimination as between Ms Rossi and anyone else.

78    Accordingly, Ms Rossi has not demonstrated that she has an arguable case against Ms McCristal in relation to the events of October 2008.

Maurice Blackburn and Mr McCristal

79    Ms Rossi principally alleges that Maurice Blackburn aided and permitted Mr McCristal to “continue” his breach of the DDA by:

(1)    continuing to represent Ms Rossi in relation to the workers compensation claim;

(2)    requiring Ms Rossi to accept the settlement of the workers compensation claim, which purportedly occurred in October 2008; and

(3)    failing to address Ms Rossi’s concerns in respect of the settlement.

80    There is also an allegation that Maurice Blackburn authorised MB Gippsland and Mr McCristal to provide legal services to Ms Rossi under the trading name “Maurice Blackburn”. I do not accept that this fact, without more, provides a sufficient basis for a case that Maurice Blackburn aided or permitted unlawful discrimination by Mr McCristal. If it does, the merits of such a case, which does not involve any awareness of any alleged unlawful discrimination, or any facts by reason of which Maurice Blackburn ought to have been aware of any alleged unlawful discrimination, are so slight as to be disproportionate to the time and resources likely to be consumed by dealing with that case in a proceeding in this Court.

The conduct of Mr McCristal that Maurice Blackburn allegedly aided and permitted

81    Having regard to the pleaded case, it is necessary to identify Mr McCristal’s alleged unlawful conduct after 22 October 2009. The ASoC does not specify any particular conduct but says that Maurice Blackburn aided and permitted Mr McCristal to “continue the breach” referred to in para 121 of the ASoC.

82    Paragraph 121 states:

By reason of the facts and matters set out in paragraphs 3.f, 5, 6 and 107 to 94 121 [sic], the Third Respondent breached ss 6 and 24 of the DDA.

83    I have reviewed paras 3.f, 5, 6 and 94 to 120 of the ASoC. Those paragraphs contain the following allegations of conduct on the part of Mr McCristal:

(1)    he provided legal services to Ms Rossi;

(2)    he advised and represented her in relation to the workers compensation claim;

(3)    he imposed the three requirements on 27 to 29 October 2008;

(4)    he applied pressure to Ms Rossi to sign the deed in October 2008; and

(5)    he engaged in conduct negating any real or effective choice by Ms Rossi in relation to the signing of the deed.

84    In the AHRC complaint, Ms Rossi makes detailed allegations concerning Mr McCristal’s provision of legal services to her up to 29 October 2008. She also makes allegations concerning a conversation with Mr McCristal on about 1 December 2008 and concerning Mr McCristal’s conduct in connection with the settlement monies.

85    For the purpose of the application, I have assumed that Ms Rossi’s case is that, in all her dealings with Mr McCristal from 27 October 2008, he imposed the three requirements because, otherwise, there is no basis for a conclusion that any of those dealings involved unlawful discrimination.

86    The evidence before the Court concerning Mr McCristal’s conduct after 22 October 2009 is consistent with the AHRC complaint, that is, it mainly concerned the settlement monies paid by Qantas pursuant to the deed. More particularly, on the evidence, Mr McCristal:

(1)    authored a letter dated 22 December 2009 by which Mr McCristal urged Ms Rossi to accept the settlement for reasons set out in the letter;

(2)    returned the settlement monies to Qantas’ solicitors at Ms Rossi’s request, and received them back from Qantas’ solicitors;

(3)    informed Ms Rossi that Qantas would not accept the settlement monies and proposed to forward them to the Unclaimed Monies Registrar as Ms Rossi would not accept them;

(4)    sent Ms Rossi documents, in response to a request from her;

(5)    confirmed to Ms Rossi in February 2011 that the settlement monies remained in the MB Gippsland trust account;

(6)    authored other correspondence relating to the destination of the settlement monies; and

(7)    may not have responded to each letter received by him from Ms Rossi.

87    Accordingly, I understand Ms Rossi’s case to be that Mr McCristal engaged in unlawful discrimination after 22 October 2009 comprising his acts or omissions in connection with the aftermath of the workers compensation proceeding and, most particularly, his conduct in communicating with Ms Rossi and in dealing with the settlement monies.

Basis for allegation that Maurice Blackburn aided and permitted Mr McCristal’s post-22 October 2009 conduct

88    In order to understand Ms Rossi’s case against Maurice Blackburn, it is necessary to identify the relevant conduct of Maurice Blackburn and also the factual basis for the allegation that this conduct aided and permitted Mr McCristal’s allegedly conduct.

Allegation that Maurice Blackburn “continued to represent Ms Rossi” in relation to the workers compensation claim

89    Neither Ms Rossi’s 12 February 2020 affidavit nor the ALRC complaint contains any allegation that Maurice Blackburn represented her in relation to the workers compensation claim. In her 1 May 2020 affidavit, Ms Rossi states that she received communications from Maurice Blackburn up until November 2011 to the effect that the firm were not going to assist her.

90    In the AHRC complaint, Ms Rossi stated relevantly:

5.29    Ms Rossi made desperate attempts on her own to resolve the situation with senior management, including the CEO at Maurice Blackburn in Melbourne. Ms Rossi was advised directly by Mr Halstead that the matter was nothing to do with them, they were “not interested” and she should take the matter up with Qantas.

5.30    Letters and correspondence then continued to be exchanged between Ms Rossi and Maurice Blackburn, but with no success ...

91    The ASoC refers to ten letters as particulars of the allegation that Maurice Blackburn aided and permitted Mr McCristal to “continue” his breach of the DDA. These are:

(1)    a letter dated 22 October 2009 from Maurice Blackburn to Graham Wells of the Springvale Monash Legal Service Inc, who was apparently acting on behalf of Ms Rossi;

(2)    Mr Wells’ response dated 16 November 2009;

(3)    four letters from Ms Rossi to Maurice Blackburn dated between 29 April 2010 and 9 June 2010;

(4)    a letter from Mr McCristal to Ms Rossi dated 22 June 2011; and

(5)    three letters from Ms Rossi to Mr McCristal at Maurice Blackburn dated between 26 August 2011 and 1 December 2011.

92    To the extent that these letters are relied upon to support an allegation that Maurice Blackburn “continued to represent” Ms Rossi in relation to the workers compensation claim:

(1)    The 22 October 2009 letter cannot reasonably be construed as evidence that Maurice Blackburn was representing or would represent Ms Rossi in relation to the workers compensation claim. To the contrary, the letter says relevantly:

As earlier discussed, the Traralgon practice of Maurice Blackburn is a separate firm operated by John McCrystal under his own practising certificate. Any issues Sarah may have with legal services provided to her are with that firm.

…

If Sarah is adamant she will not proceed with the settlement and wished to have it set aside she will need to instruct alternative lawyers to attempt this.

If however, she seeks help with the understanding of the documentation and the factors commonly involved in litigation and settlements I could assist your office in this regard.

(2)    Mr Wells’ 16 November 2009 letter evidences the possible future provision of advice to Ms Rossi, but not representation. Relevantly, it states that Ms Rossi:

… would like to take up your offer to discuss in a general way, “the documentation and the factors commonly involved in litigation and settlements [of this type] …”

(3)    Ms Rossi’s letters dated between 29 April 2010 and 9 June 2010 evidence complaints to Maurice Blackburn about Mr McCristal, and instructions from Ms Rossi (to return settlement monies to Qantas and, later to place the settlement monies into Maurice Blackburn’s trust account) but do not evidence that Maurice Blackburn represented Ms Rossi in relation to the workers compensation claim.

(4)    Mr McCristal’s 22 June 2011 letter refers to the 1 July 2011 purchase of MB Gippsland by Maurice Blackburn and the transfer of any monies held in the MB Gippsland trust account to Maurice Blackburn. It does not evidence that Maurice Blackburn represented Ms Rossi in relation to the workers compensation claim.

(5)    Ms Rossi’s letter dated 26 August 2011 includes an instruction to Maurice Blackburn not to communicate with Qantas or its lawyers, contrary to a contention that Maurice Blackburn represented Ms Rossi in relation to the workers compensation claim. The subsequent letters also do not evidence that Maurice Blackburn represented Ms Rossi in relation to the workers compensation claim.

93    On this evidence, Ms Rossi has not demonstrated an arguable basis for the allegation that Maurice Blackburn continued to represent her in relation to her workers compensation claim.

Allegation that Maurice Blackburn “required” Ms Rossi to accept the settlement with Qantas

94    Apart from the correspondence described above, the ASoC does not identify a basis for the allegation that Maurice Blackburn required Ms Rossi to accept the settlement of the workers compensation proceeding. In this context, the allegation that Maurice Blackburn “required [Ms Rossi] to accept the Settlement” is ambiguous and likely to cause embarrassment. It implies that Maurice Blackburn compelled Ms Rossi in some way but no act of compulsion is identified.

95    As articulated, Ms Rossi’s complaint is that Maurice Blackburn failed to assist her by returning the settlement monies to Qantas and, perhaps, by failing to take steps to undo the settlement. There is evidence that, in about May 2010, Mr McCristal attempted to return the settlement monies to Qantas’ lawyers, pursuant to Ms Rossi’s instructions, but Qantas refused to accept them. To the extent that the allegation is based on an omission by Maurice Blackburn, Ms Rossi did not identify any basis upon which it might be alleged that Maurice Blackburn had a relevant obligation to return the settlement monies to Qantas or to take steps to undo the settlement or that it was capable of doing either of those things.

Allegation that Maurice Blackburn failed to address Ms Rossi’s concerns

96    This allegation does not identify an underlying obligation on the part of Maurice Blackburn to address Ms Rossi’s concerns.

Connection between conduct of Maurice Blackburn and Mr McCristal’s unlawful conduct

97    On the evidence, the only relevant conduct on the part of Maurice Blackburn prior to June 2011, when Maurice Blackburn purchased MB Gippsland, was the 22 October 2009 letter. There is no rational connection between that letter and any unlawful conduct on the part of Mr McCristal. The letter did not permit any conduct by Mr McCristal. Nor did the letter assist Mr McCristal in relation to any unlawful conduct.

98    Nor is there any evidence of a relationship between Maurice Blackburn and MB Gippsland pursuant to which Maurice Blackburn might have aided or permitted any conduct by Mr McCristal in connection with Ms Rossi, prior to June 2011.

99    Thereafter, it is at least arguable that Maurice Blackburn relevantly permitted any conduct by Mr McCristal in connection with Ms Rossi. However, that conduct comprised only correspondence with Ms Rossi concerning the settlement monies and receiving requests for information from Ms Rossi, and a further instruction to return the settlement monies to Qantas or its lawyers.

Conclusion

100    In addition to my conclusion that Ms Rossi has not demonstrated an arguable case against Ms McCristal in relation to the events of October 2008, I am also not satisfied that Ms Rossi has a reasonably arguable case that Mr McCristal engaged in indirect discrimination in any of his dealings with Ms Rossi after October 2008.

101    There is no apparent basis for a case that Maurice Blackburn aided or permitted any unlawful discrimination prior to June 2011. Thereafter, the only dealings between Mr McCristal and Ms Rossi were in writing. The case that Mr McCristal engaged in unlawful discrimination against Ms Rossi after June 2011 by those dealings is not apparent on the face of the ASoC. In those circumstances, there is no reasonably arguable case that Maurice Blackburn aided or permitted any act of unlawful discrimination by Mr McCristal.

Discretionary considerations

102    In case I am wrong in concluding that Ms Rossi does not have a reasonably arguable case against Maurice Blackburn and Mr McCristal, I have considered the discretionary considerations relevant to the grant of leave. In my view, these point strongly against the grant of leave to bring a claim against these parties.

103    In reaching this conclusion, I acknowledge the great significance of the proceeding as a whole to Ms Rossi personally. Although Ms Rossi identifies her experiences at Qantas as the reason why she ceased to work, there is no doubt that Ms Rossi is seriously aggrieved about her dealings with Mr McCristal and, to a lesser extent, her dealings with Maurice Blackburn.

104    The relevant events occurred in October 2008 and in the period to December 2011, that is, between 7 to 10 years prior to the AHRC complaint.

105    However, the events occurred in the context of Ms Rossi’s significant history of psychological conditions, dating at least from the later years of her employment with Qantas which ended in 2003.

106    In the reasons for terminating the AHRC complaint, the delegate found that there was “a very significant delay in bringing the complaint to the Commission”. The delegate rejected a contention that the delay in bringing Ms Rossi’s complaint was comparable to a racial discrimination matter heard by the Human Rights and Equal Opportunity Commission (the predecessor to the AHRC) where there was a 10 year delay in lodgement of the complaint.

107    Concerning the potential impact of the delay, the delegate expressed concern that key people may no longer accurately recall events and/or that other potentially useful information to support or refute the allegations may have been lost or destroyed. The delegate concluded that, considering these matters, the delegate was “concerned about the potential impact of the extensive delay on the [AHRC’s] ability to conduct a fair inquiry into the complaint”.

108    In her written submissions in chief, Ms Rossi gave the following explanation:

20.    … [F]rom around October 2008, when the Second and Third Respondents ceased to represent her, the nature of her disabilities meant she did not have legal capacity to be able to represent herself. Thus she was unable to take any steps in the litigation given the operation of:

a.    s 78 of the County Court Act 1958 (Vic) (CCA) and Order 15 of the then County Court Rules of Procedure in Civil Proceedings 1999 (Vic) and their later iterations and/or

b.    Division 9.6 (Persons Under a Legal Incapacity) of the Federal Court Rules 2011 (Cth) (FCR) and its earlier iterations.

109    The relevant disabilities are identified earlier in the submission as a lack of legal capacity to represent herself since the termination of Ms Rossi’s employment with Qantas in 2003 and an inability to obtain legal representation, other than for a brief period of time from Maurice Blackburn and Mr McCristal, despite approaching a significant number of legal practices.

110    The submissions identify the evidence of these disabilities as the medical evidence of Dr DiMarco, psychiatrist, and Ms Allan, psychologist. However, even taken at its highest, this evidence does not support a conclusion that Ms Rossi was unable to make a complaint to the AHRC against Qantas at any time between 2003 and 2018, or in relation to Mr McCristal and Maurice Blackburn at any time following the events complained of. The medical evidence does not support a conclusion that Ms Rossi required legal assistance to make her complaint to the AHRC.

111    Contrary to Ms Rossi’s submission, Dr DiMarco does not express an opinion that Ms Rossi lacked capacity to represent herself at any time from mid-2003 to the present. Rather, Dr DiMarco’s relevant evidence concerned Ms Rossi’s capacity to engage in litigation as a self-represented litigant, without the advice or support of a lawyer and assuming that she would be required to undertake certain tasks. Ms Allan’s relevant evidence was directed to the same question.

112    Having regard to these matters, I do not accept that Ms Rossi has provided an acceptable explanation for the failure to make her complaint to the AHRC before December 2018.

113    Even accepting Dr Di Marco’s lack of confidence about Ms Rossi’s ability to make logically structured written statements for litigation purposes (but not her inability to make detailed written statements), I do not accept that this limitation provides a satisfactory explanation for failing to make a complaint to the AHRC at any time. Even assuming in Ms Rossi’s favour that her psychiatric and psychological conditions since mid-2003 provide some explanation for delay in making a complaint, there is no evidence that they explain delay of the magnitude in this case.

114    In this regard, in September 2012, Ms Rossi made a submission to the House of Representatives Standing Committee on Education and Employment Inquiry into Workplace Bullying. Although not in evidence, the covering letter refers to a 19 page document which is described as “Workplace Incidents and details of cumulative incident”, and referred to in reference to “unrelenting and unmonitored conditions that were imposed upon [Ms Rossi] through a prolonged pattern of incidents”. This submission shows that Ms Rossi was able to make a detailed written submission in September 2012.

115    I accept that legal representation facilitated Ms Rossi’s eventual complaint to the AHRC and probably enabled the complaint to be expressed more persuasively that might have been the case had Ms Rossi prepared the complaint herself. However, legal representation was not a prerequisite for Ms Rossi making the complaint.

116    Ms Rossi’s delay in complaining to the AHRC about the respondents is very lengthy. This delay is a significant factor against the grant of leave to proceed because of its negative impact on the Court’s likely capacity to conduct a fair hearing as explained in Brisbane Health and Herron.

117    As to prejudice, Maurice Blackburn and Mr McCristal gave the following evidence of prejudice in the event that leave to proceed were to be granted:

(1)    Mr McCristal stated that his independent recollection of the relevant events was “significantly limited by reason of them taking place over 11 years ago”. In particular, Mr McCristal said that he does not have a clear independent recollection of a meeting between himself and Ms Rossi on 29 October 2008.

(2)    Brent Hutchinson, a barrister briefed by Mr McCristal on Ms Rossi’s behalf in relation to her workers’ compensation claim against Qantas stated, among other things:

… Reading Ms Rossi’s affidavit has been of some limited use in refreshing my memory of the events of October 2008.

I otherwise have a vague recollection of Ms Rossi and her claim, which I recall was a County Court worker’s compensation proceeding against her employer Qantas. ... It was a very long time ago and I no longer have any notes or records in relation to Ms Rossi’s matter.

(3)    Stuart Coutts, who now works for John McCristal Injury Lawyers and worked at WorkCover Assist from about 2003 until 2009, recalls that Ms Rossi was a client of his at WorkCover Assist but states that “my involvement with her dates back approximately 15 years so my recollection is fairly limited”. Mr Coutts says that he recalls that Ms Rossi wanted to pursue a WorkCover claim against Qantas but does not recall the details. He believes that he met Ms Rossi two or three times, including at an unsuccessful conciliation.

118    There is also evidence that points to the difficulty of resolving factual questions about the onset and development of Ms Rossi’s alleged psychological conditions, and the likely cause or causes of those conditions. For example:

(1)    In September 2006, a psychiatrist, Dr Jackson, who examined Ms Rossi at the request of Qantas, expressed the following opinion:

This woman is very difficult to assess particularly because of medico-legal/workers compensation entanglements with Qantas and legal considerations.

…

Particularly given the passage of time and in the absence of contemporary [sic] medical records and information, it is very difficult to identify specific causal relationship with her employment.

(2)    In Dr Di Marco’s report, she noted in relation to questions about Ms Rossi’s state of mind in 2008

In answering the below questions, a limitation is that the main source of information available to me is Ms Rossi’s recall of her capacity at that time, and my assumption that her recall is accurate. I note that Ms Allan, treating psychologist, submitted her recollection of Ms Rossi being “shell-shocked” after the October 2008 proceedings, that Ms Rossi was sufficiently concerned about her own mental state at the time to seek care from her general practitioner, and that one or around 1 November 2008, her general practitioner reportedly referred her for a psychiatric admission due to suicidal ideation. These pieces of information could be objectively verified if notes were available to corroborate Ms Rossi’s account of her psychiatric state around the time of signing the Deed.

119    Ms Rossi submitted that there is no relevant prejudice to the respondents, noting:

(1)    the persons who are the subject of the complaints against Maurice Blackburn and Mr McCristal are available, and have given evidence on the leave application; and

(2)    the evidence filed by Maurice Blackburn and Mr McCristal shows that there is a clear recollection of the relevant events.

120    As to the claims against Maurice Blackburn and Mr McCristal, Ms Rossi submitted that Mr McCristal’s evidence discloses detailed memories as to his initial meeting with Ms Rossi. Given his stated recollection that he felt deceived by Ms Rossi when he became aware of pre-existing medical conditions, Ms Rossi submitted that his memory is not suffering from any deficiency and is so reliable that he is able to make this “serious allegation”. Ms Rossi also relied on several pieces of evidence concerning her disclosure of her prior depression and antidepressant medication.

121    Ms Rossi also submitted that the effluxion of time is a disadvantage that equally affects her and the respondents.

122    I would not grant leave to proceed against either party because it would be palpably unjust to require a respondent to address the main issues that would be in dispute in this case, so long after the event. In particular, it would be difficult or impossible for Maurice Blackburn and Mr McCristal to investigate Ms Rossi’s medical conditions in 2008 and the events and circumstances that affected her medical conditions from time to time, but at least since 2003. It would also be difficult or impossible to investigate Ms Rossi’s allegations concerning her knowledge and states of mind on 27-29 October 2008 so long after the events. One obvious line of inquiry would concern Ms Rossi’s actions and behaviours on those days, and her interactions with persons other than Mr McCristal and Mr Hutchinson.

123    Further, the case that Ms Rossi wishes to bring against Mr McCristal would be likely to consume very considerable time and resources, particularly in addressing as yet unarticulated questions concerning the precise nature of the services that are said to have been provided on a discriminatory basis, and the differential impact of those services on persons in Ms Rossi’s cohort and persons not affected by those alleged disabilities. Ms Rossi has not demonstrated that the alleged indirect discrimination is ongoing, or has affected or might affect any person other than herself. In those circumstances, any merit which her case against Mr McCristal might have is not demonstrated to be proportionate to the time and resources likely to be consumed by dealing with it in this Court.

Conclusion

124    Ms Rossi’s application for leave to make an application pursuant to s 46PO(1) against Maurice Blackburn and Mr McCristal should be refused with costs.

125    The application for leave to make an application against Qantas should be adjourned pending determination of Ms Rossi’s application for orders setting aside the October 2008 deed. The latter application should be determined as soon as practicable.

Associate:

Dated:    31 July 2020